Articles Posted in Car Accidents

Published on:

The court finds and concludes that there has been compliance with the requirements of section 5208 (a) (2) (A) of the Insurance Law which requires notice to the police within 24 hours of the occurrence. Obviously, since the police were called to the scene of the accident shortly after its occurrence and made a report of the investigation, the court concludes that petitioner was not required to make any further report to the police and the court determines that the requirements of section 5208 (a) (2) (A) have been totally fulfilled.

II. Section 5218 (b) (5): Reasonable Efforts

Section 5218 of the Insurance Law provides in relevant part that:

Published on:

In this proceeding the petitioner seeks an order, pursuant to article 52 of the Insurance Law, permitting him to bring an action against defendant Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC).

At the hearing conducted before this court respondent conceded that petitioner was injured as a result of an accident involving a hit-and-run motorist and that petitioner is otherwise “qualified”, within the meaning of the Insurance Law, to bring an action against MVAIC. However, respondent argued that petitioner should be precluded from bringing said action because:

(1) he failed to comply with that portion of section 5208 (a) (2) (A) of the Insurance Law, which requires that the accident be reported to the police within 24 hours after the occurrence; and (2) he failed to comply with section 5218 (b) (5) which requires that petitioner make “all reasonable efforts to ascertain the identity of the motor vehicle and of its owner and operator.”Respondent argued further that in order for petitioner to satisfy the “reasonable efforts” requirement and obtain an order granting permission to proceed against MVAIC, petitioner must first exhaust his remedy and conclude a proceeding against the suspect tortfeasor which is pending in the Supreme Court, Bronx County. Thus, the court herein is also presented with ancillary issues which involve the jurisdiction and power of the Civil Court to issue an order joining and/or consolidating a proceeding in the Civil Court with a proceeding in the Supreme Court.

The relevant injury facts
At 7:20 P.M. on July 24, 1998 in the vicinity of East Tremont Avenue and Crotona Parkway in the County of Bronx the petitioner, while operating a bicycle, was injured when he was struck by a vehicle operated by an unknown motorist who fled the scene. After the police arrived at the scene of the accident, three witnesses were allegedly present and at least two of them provided inconsistent descriptions of the vehicle and its license plate. According to the petitioner, two of the three witnesses were never identified, and one of the two unidentified witnesses is alleged to have said that he chased a “white Chevrolet with New York plate number T218086C.” The police report identified only one witness, JO, and the report contained no mention of a Chevrolet or the alleged chase of the vehicle.

At the hearing, other than to identify the vehicle as white, the petitioner was unable, from personal knowledge, to provide any information which would assist in the identification of the vehicle or its owner and operator.
Neither the reporting police officer nor the witness JO was available to testify at the hearing. In addition, neither the petitioner nor the respondent offered any evidence concerning the source of the information contained in the police report, other than that which may be inferred from the document itself.

Petitioner, however, did subpoena one EO, who admitted that on July 24, 1998, he was the owner of a white 1990 Chevrolet vehicle bearing license plate number T218086C, which he used as a taxi. He claimed, however, that he was not involved in an accident on July 24, 1998 and stated that he used this vehicle on that date to travel to New Jersey where he remained from at least 1:00 P.M. to 7:00 P.M. at Newark Airport (waiting for an uncle who never arrived) and thereafter to a girlfriend’s house in Jersey City where he remained until 11:00 P.M. Although this inadmissible evidence directly implicates the witness EO as the owner of the vehicle which struck petitioner and fled the scene of the accident, it is rendered even less reliable as a result of the perhaps disingenuous, but otherwise unchallenged, denial by EO that he or his vehicle was involved in the accident.

The witness EO said that he first learned of the accident when he received a letter and “other papers” from petitioner’s attorney. Although he could not identify the other papers as a summons and complaint, it was established that a judicial proceeding is presently pending in the Supreme Court, Bronx County, under index number 66xx/XX in which the petitioner is named as plaintiff against EO as a defendant, arising out of this accident.
I. Section 5208 (a) (2) (A): Notice to Police

To Be Cont….
Continue reading

Published on:

The issue to be decided in the CL action is whether the NYCHA defendants caused CL’s injuries by breaching a duty of care owed to him. By contrast, the issue decided in the JV action was whether the NYCHA defendants would be partly liable for contribution if CL were found liable for JV’s injuries. Although some of the same facts underlie both questions, the two cases involve different elements of proof and different evidence, such that there is no identity of issues. An award of damages to CL for his own injury would not be inconsistent with the decision in the JV action that NYCHA is not liable to him for his responsibility, if any, for JV’s injuries. Having successfully compelled CL to litigate the facts of the accident in two different venues, the NYCHA defendants cannot successfully argue that CL had a fair opportunity, or indeed any opportunity, to address the issue of NYCHA’s liability for his own injuries in Bronx Supreme Court. No dog bite was involved.

Defendants attempt to confuse the issue by claiming that F&F had no standing to bring the motion for renewal/ reargument. The NYCHA defendants invoke the principle that a party may have only one counsel of record in a given action, but they ignore the fact that CL not by choice was a party to two separate actions and therefore had two sets of attorneys to represent his diverse interests (compare, Kallivokas v Athanasatos, 151 AD2d 396). NYCHA can hardly fault F&F for attempting to intervene in the JV action, when it was NYCHA who first tried to use the JV order to preclude F&F’s claims in the CL action.

Bronx Supreme Court did not improperly exercise its discretion in granting F&F’s motion, which could be considered a motion for renewal based on the new fact that NYCHA was urging an allegedly overbroad reading of the JV court’s order so as to preclude the CL action (see, Horizons Hotels Corp. v New York Patroons, 193 AD2d 911, 913-914 [renewal based on new facts that came to light in subsequent litigation]). Ideally, it might have been better to denominate it a motion to resettle the order, which is the appropriate vehicle to clarify a prior decision (Foley v Roche, 68 AD2d 558, 566). Nonetheless, pursuant to CPLR 2001, the exact label for this motion is less important than the fact that it was necessary to correct a procedural irregularity in a just fashion (Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 143). In light of the absence of argument concerning NYCHA’s unopposed motion in the JV action, renewal/reargument was an appropriate way to dispel any confusion as to which issues had implicitly been resolved by dismissal of the fourth-party complaint, and which issues had been left for trial in New York County. In any event, even if Bronx Supreme Court’s grant of renewal were improper, the original order dismissing CL’s fourth-party complaint still would not have precluded his negligence claims on his own behalf, for the reasons previously stated.

Published on:

These personal injury actions, which had been litigated in different counties but consolidated for purposes of this appeal, arose out of an bike accident that took place on the Bruckner Expressway, around 3:30 A.M. on June 6, 1992. CL lost control of his vehicle, which became disabled in the left lane of traffic. A passing motorist, JV, stopped to help. CL, JV and his brother caught the attention of a NYCHA police car in the right lane, driven by Maher, who was accompanied by another police officer in the passenger seat.

The three men wound up in the middle lane of the highway to speak with Maher, but within moments were hit by another car that had been traveling in the middle lane. This car, driven by SSM and owned by GM, also hit the police car. CL and JV were hospitalized for their injuries.
CL commenced an action in Bronx Supreme Court against NYCHA, Maher, SSM and GM, seeking damages for his personal injuries (the CL action). JV commenced a separate action in Bronx Supreme Court against SSM, GM and CL, seeking damages for JV’s injuries (the JV action). SSM and GM named CL as a third-party defendant in the JV action. CL, in turn, asserted a fourth-party claim against NYCHA and Maher, seeking contribution from them should he be found liable for JV’s injuries.

NYCHA successfully moved to change the venue of the CL action to New York County, and CL’s motion to consolidate the CL and JV actions was denied. Therefore, CL retained the law firm of Fitzgerald & Fitzgerald (F&F) to litigate his damages claims in the CL action, while his insurance company designated Beesecker & Koors (now known as the firm of L.A. Beesecker, Esq.) to defend CL in the JV action.

By order dated June 11, 1998, Bronx Supreme Court granted the motion of defendants NYCHA and Maher to dismiss CL’s fourth-party complaint against them in the JV action. The Beesecker firm did not oppose this motion. NYCHA and Maher then moved to dismiss CL’s complaint in the CL action on res judicata/collateral estoppel grounds, asserting that Bronx Supreme Court’s dismissal of the fourth-party complaint precluded CL from relitigating the issue of NYCHA’s liability for his injuries. The NYCHA defendants also asserted their entitlement to summary judgment on the merits. In the first of the orders on appeal, the Supreme Court, New York County, denied the defendants’ motion.
F&F then made a cross-motion before Bronx Supreme Court to be substituted as counsel in the JV action, and for renewal, reargument and modification of the order dismissing the fourth-party complaint. In the second of the orders on appeal, the Judge presiding over the JV action granted this cross-motion only to the extent of limiting [the prior order’s] applicability to this action, before this Court. In other words, Bronx Supreme Court endeavored to clarify that it had not meant for the dismissal of the fourth-party contribution claim to preclude litigation of CL’s own personal injury claims in another forum, particularly since Bronx Supreme Court had previously refused to consolidate the actions.

We reject the NYCHA defendants’ argument that CL is collaterally estopped from litigating the issue of defendants’ negligence in the New York County action. For collateral estoppel (also known as issue preclusion) to apply, there must be an identical issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling (Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 71). Neither of those requirements is met here.

To Be Cont…
Continue reading

Published on:

The petitioners here contend that their Exhibit 10, which is a complaint of larceny against Diaz, the driver, by Ortiz, the owner, and was sworn to by Ortiz, is proof that the vehicle was, as a matter of fact, stolen and, therefore, used without permission. Reliance is placed by the petitioners upon the case of Matter of Lowe

As I have hereinbefore mentioned, there was no accident report filed with the Department of Motor Vehicles in the instant case. And even were I to go along with the petitioner’s contention that the criminal complaint, without more, is proof of what is therein alleged–just as my learned colleague held in Lowe was the effect of the report to the Department of Motor Vehicles–there is a further fact proven in the instant case that negates the contention. For it appears that the charge of larceny made by Ortiz against Diaz was dismissed by the Criminal Court having jurisdiction upon the ground that there was not ‘sufficient cause to believe the defendant guilty of the personal injury offense.

It was further proved before me that the driver, Diaz, pleaded guilty to the charges of ‘Unlicensed Operator’ and of ‘Leaving Scene of Accident–Personal Injury’, both arising out of the same events herein involved. Diaz was found guilty on the basis of these pleas, and was committed on these two charges on November 11, 1964, the same day on which the larceny charge was dismissed. While these guilty pleas and the sworn complaints upon which the charges were based show that Diaz was driving the vehicle in question, they are not proof that he was doing so without permission or that he had stolen the vehicle. To infer, as the petitioners suggest, that, because the owner, Ortiz, lodged a complaint of larceny, the vehicle was in fact stolen would be to come to a conclusion as to which the Criminal Court found an absence of probable cause.

Published on:

Accepting the second aspect of the personal injury contention–that the conditions precedent are alternatives–it is my finding on the facts that none of the several situations set forth in the statutes has been proven here. As pointed out above, Numbers (1), (2) and (7) were not in issue and, as to Numbers (3) and (6), there was uncontradicted and credible testimony that there was a liability policy in effect on the Ortiz car at the time in question, and that the insurer had neither disclaimed liability nor denied coverage with regard to the accident. And there was no proof that the alleged driver did not have coverage. There thus remain for consideration situations Number (4) and Number (5)–that is, whether the vehicle in question was either stolen or otherwise operated without the permission of its owner.

The petitioners urge that, as a matter of law, the vehicle must be considered ‘uninsured’ because (1) there was no permissive use, the vehicle having been stolen–a contention which I shall discuss shortly–and (2) the policy is unenforcible–i. e., the insurer is not liable, because (a) there was no notice to it and (b) there was no filing of an accident report with the Department of Motor Vehicles.

In support of this latter argument–of the unenforcibility of the policy–the petitioners rely upon the case of MVAIC v. American Southern Insurance Company, 44 Misc.2d 525, at page 527, 254 N.Y.S.2d 44, at page 46, quoting therefrom the following language: It affirmatively appears that neither plaintiff nor defendant’s insured complied with the notice requirements of the policy, conditions precedent to any recovery thereon, and that, as a matter of law, the types of notice mandated were not afforded, the notification finally given was untimely, and the delay involved was unreasonable.

Published on:

A sharp differentiation must be made between (a) a finding that the insurance company is not liable under a valid policy because the injuries were not caused by accident and hence were not within the risks covered by the policy and (b) a finding that the company is not liable because the policy was not in force at the time in question or because there had been a breach of a condition of the policy by the insured rendering it unenforceable. In the latter case, the finding establishes that no enforceable insurance policy was in effect at the time of the injury; hence the automobile was an uninsured automobile within the meaning of the MVAIC endorsement. In the former case, the finding recognizes that there was a standard insurance policy of the required type in force at the time which covered all the risks which were required to be covered; hence no uninsured automobile was involved and MVAIC could not be held liable.

In regard to, and accordance with, the specific finding and final conclusion in McCarthy, which are not of as much significance to my present point as is the reasoning expressed by the court.

In the light, then, of the cases discussed above, and on the premise that reason, logic and pragmatism have a certain role to play in the development of the law, I had decided to invoke the broader meaning of the term ‘uninsured vehicle’, and thus determine in this single proceeding the several factual issues actually involved in a definitive disposition of the matters preliminary to the right to the claimants to arbitration.

Published on:

The importance of this North Carolina case, for present purposes, is that, in determining whether the responsible vehicle was ‘uninsured’, the Court felt that, in construing the phrase involved, it must go beyond the specific definitions to be found in the statute and the policy endorsement, and determined that the vehicle was to be deemed ‘uninsured’ in the eyes of the law not because there was in fact no policy of indemnity insurance issued and in fact in force, but because the vehicle involved was at the time being operated without the permission of the owner, although that circumstance is not within the specific statutory and policy definitions.

The New York case of Travelers Indemnity Company, cited above, was decided in 1962. It arose out of an accident in March 1959. The insurance policy involved had been issued in May 1958, prior to the effective date (January 1, 1959) of the Motor Vehicle Accident

Indemnification Corporation Law (Insurance Law, art. 17-A). The policy carried an endorsement known as ‘Family Protection Coverage Endorsement’, which provided for insurance coverage to certain dollar limits for bodily injury caused to the insured by the operation of an ‘uninsured automobile’. Under Clause II(c) of the endorsement there involved an ‘uninsured automobile’, insofar as here applicable, means ‘an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile.’ It will be noted that this provision is substantially the same as that to be found in Insuring Agreement II(b)(1) of the New York Automobile Accident Indemnification Endorsement concerned in the instant matter and quoted supra.

Published on:

The statute provides that the insurer shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant (Insurance Law sec. 167). There has been no such notice here, written, oral or implied. 2 Further, there has been no proof that the alleged driver, Diaz, was not, himself, covered by a policy of liability insurance.

The petitioner’s assertion, as I have stated, is that the vehicle was stolen and operated without the permission of the owner (Numbers (4) and (5) on the above-enumerated list of conditions precedent), and was, therefore, uninsured within the meaning of the order providing for a trial of that preliminary issue.

It would seem that, under a strict construction of the definitions of the statutes and the policy endorsement, this contention would be lacking in force. For, while an injury caused by a vehicle which was stolen or operated without permission, on the one hand, and one sustained due to a vehicle as to which no policy of indemnity was in effect at the time or which was uninsured and registered outside the State of New York or which was a hit-and-run vehicle, on the other, will have the same result–that is, a proper claim against the MVAIC–they are not precisely the same thing. And thus it may well be argued that, inasmuch as the injury statutes and the endorsement specifically define the phrase used in the order of Special Term, the scope of the issue to be determined by me is no broader than items (1), (2) and (3) set forth in Section 600.

Published on:

This is a proceeding arising out of an accident in which the infant claimant was injured by an automobile owned by one Ortiz and operated by one Diaz. The claimants–entitled by the respondent (which instituted this proceeding) as petitioners–served a notice of arbitration upon the Motor Vehicle Accident Indemnification Corporation, which entitled itself herein as the respondent. The respondent by this proceeding applied at Special Term for Motions for an order staying arbitration pending the fulfillment of certain conditions. Such an order was granted, and the preliminary determination of the issue as specified therein as to whether the alleged responsible vehicle was an uninsured vehicle at the time of the alleged accident’ was referred for trial.

The hearing on such initial injury issue was held before me without a jury, the trial concluding in October 1965. The proof is that the automobile involved in the accident was in fact ‘insured’, as that term is generally understood. But that does not dispose of the matter, for I permitted the claimants at the trial to project the issues that the vehicle was stolen from the assured, that at the time of the accident it was being operated by the driver without the permission of the owner, and that the insurance carrier had disclaimed liability. There was no suggestion of surprise on the part of the respondent, and both parties proceeded to trial on these issues. This procedure I adopted in the interests of justice and expedition, although the order of reference was not thus expressed in so many words, nor was a motion made to resettle the order accordingly before the Judge who had directed the personal injury trial of the preliminary issue in the first instance, nor was a motion made before me at the trial so to resettle the order, or to modify or expand it. It would, of course, have facilitated the trial, consideration and disposition of the case had the order directing a preliminary hearing been so drafted by counsel and entered by the court as to be clearly explicit and adequately inclusive.

It is, therefore, now a matter for my decision as to whether the procedure I followed was–on the law–a correct one; and, if so, whether the claimants–on the facts–proved by a preponderance of the credible evidence that the vehicle was stolen or used without permission, or whether there was a disclaimer by the insurance carrier.

The several conditions precedent listed in the statute are all factual issues, as to each of which the burden of proof is upon the claimant. Numbers (1), (2) and (7), quoted supra (Insurance Law, sec. 600), are not in issue in this case, none of them having been asserted–one way of the other–by either of the parties. As to Numbers (3) and (6), it was the uncontradicted testimony of a representative of the Fidelity and Casualty Company, the insurer of the allegedly responsible vehicle, that there was a policy of liability insurance in effect on the automobile in question 1 on the date in question, and that there has been neither disclaimer of liability nor denial of coverage by the insurer in regard to the accident.

To Be Cont…
Continue reading

Contact Information